DEPARTMENTOFTHE NAVY
BOARD FOR CORRECTION OF N A V A L R E C O R D S
2 N A V Y A N N E X
WASHINGTON D C 20370-5100
TJR
Docket No: 9542-02
8 August 2003
This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, United
States Code, Section 1552.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 5 August 2003. Your allegations of error and
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board. Documentary material considered by the Board consisted of
your application, together with all material submitted in support
thereof, your naval record, and applicable statutes, regulations,
and policies.
After careful and conscientious consideration of the entire
record, the Board found the evidence submitted was insufficient
to establish the existence of probable material error or
injustice.
You enlisted in the Marine Corps on 3 January 1972 at age 18. On
28 September 1972 you received nonjudicial punishment (NJP) for
possession of an unclean rifle and were awarded a $70 forfeiture
of pay and restriction for 10 days.
On 30 October 1973 you were convicted by special court-martial
(SPCM) of three periods of unauthorized absence (UA) totalling
175 days. You were sentenced to confinement at hard labor for
two months, $150 forfeiture of pay, and a reduction to paygrade
E-1.
During the period from 15 November 1973 to 12 September 1974 you
were in a UA status for 301 days. On 6 November 1974 you
submitted a written request for an other than honorable discharge
in order to avoid trial by court-martial for the foregoing period
of UA. Prior to submitting this request for discharge, you
conferred with a qualified military lawyer, were advised of your
rights, and warned of the probable adverse consequences of
accepting such a discharge. Subsequently, your request for
cii.sc?~arge was granted and on 22 November 1974 you received an
other than honorable discharge in lieu of trial by court-martial.
As a result of this action, you were spared the stigma of a
court-martial conviction and the potential penalties of a
punitive discharge and confinement at hard labor.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth and immaturity and your contention that your discharge
should be upgraded so that you may obtain veterans benefits.
Nevertheless, the Board concluded these factors and contention
were not sufficient to warrant recharacterization of your
discharge because of your repetitive misconduct, especially, the
lengthy period of UA which resulted in your request for
discharge. The Board believes that considerable clemency was
extended to you when your request for discharge was approved
since, by this action, you escaped the possibility of confinement
at hard labor and a punitive discharge. The Board also concluded
that you received the benefit of your bargain with the Marine
Corps when your request for discharge was granted and should not
be permitted to change it now. Accordingly, your application has
been denied.
The names and votes of the members of the panel will be furnished
upon request.
It is regretted that the circumstances of your case are such that
favorable action cannot be taken. You are entitled to have the
Board reconsider its decision upon submission of new and material
evidence or other matter not previously considered by the Board.
In this regard, it is important to keep in mind that a
presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval
record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.
Sincerely,
Executive
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